Shijimol C.S. v. Gopasanth G.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941 Mat.Appeal.No.985 of 2018 AGAINST THE JUDGMENT IN OP 2005/2013 of FAMILY COURT,ERNAKULAM DATED 13-09-2018 ## APPELLANT/PETITIONER: SHIJIMOL C.S. AGED 29 YEARS D/O. SUBRAHMANIAN, CHADENGATTU HOUSE, KUMBALANGI P.O., KOCHI - 07 BY ADV. SMT.R.LEELA ## RESPONDENT/RESPONDENT: GOPASANTH G., AGED 37 YEARS S/O. R. GOPALAKRISHNAN, KRISHNADHASAPURAM HOUSE, EZHUPUNNA P.O., CHERTHALA - 688 548 BY ADVS. J.R.PREM NAVAZ (CAVEATOR) SRI.P.T.SHEEJISH THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 18.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mat. Appeal No.985/2018 : 2 : ## **JUDGMENT** ## K. Harilal,J. The appellant is the wife of the respondent herein. This appeal has been filed challenging the judgment granting dissolution of marriage in O.P. No. 2005 of 2013, which was filed under Section 13(1)(ia) of the Hindu Marriage Act seeking a decree for dissolution of marriage on the ground of cruelty. The parties are referred to as in the Original Petition. 2. The brief facts of the case can be summarised as follows: The respondent is the legally wedded wife of the petitioner. They belong to Hindu Ezhava community. Their marriage was solemnized on 07.09.2008 at the parental house of respondent. A son named Nishal Gopan was born out of the wedlock on 03.06.2009. The petitioner is working as a driver in Kerala Police. The respondent is a teacher by profession with M.A and B.Ed. The spouses resided in the Mat. Appeal No.985/2018 : 3 : parental house of the petitioner along with his parents, brother and his wife and children. From the very beginning of the marriage, the respondent behaved in an indifferent manner towards the petitioner and his family members. She wanted the petitioner to abandon his parents and reside separately. She alleged that the petitioner is having illicit relationship with the wife of his brother. The mother of the petitioner was suffering from Cancer. Instead of consoling her, the petitioner created problems. His mother underwent surgery and chemotherapy in RCC, Trivandrum. The respondent/accused had showered filthy abuses upon his mother. The respondent started to cook separately in her matrimonial home. During December, 2011, his mother was admitted in Alappuzha Medical College in a critical condition. The respondent refused to either visit or nurse his mother. After a lot of persuasions, the respondent was prepared to stay in the hospital for thee days. His mother passed away on Mat. Appeal No.985/2018 : 4 : 30.12.2011. The respondent was reluctant to come and see the dead body of his mother. She came with the child by 11.30 in the night after persuasions. On 10.03.2012, the respondent threatened to commit suicide with the child, since he came late. Her only intention was to spoil the peaceful atmosphere in her matrimonial home. Her father suggested for a clinical counselling. Accordingly, the petitioner fixed an appointment Clinical Psychologist at Medical Trust Hospital, Ernakulam. The respondent refused to participate in the counselling. As suggested by the respondent, the spouses underwent family counselling with a person at Poothotta. On the same day, she tried to commit suicide by jumping from the bike while returning after counselling. She thereafter blamed that the petitioner tried to kill her. The local people agitated against him, abused him and even tried to manhandle him in public. The respondent alleged that the father of the petitioner tried to kill her and the child by opening the gas Mat. Appeal No.985/2018 : 5 : cylinder and it has created severe embarrassment and pain to the entire family. Unable to bear the quarrelsome conduct of the respondent, the petitioner took a house on rent in May, 2012. But, the respondent refused to shift the rented house and insisted his family members to vacate the matrimonial home. On the next day, she left the house with the child threatening to jump from the Ezhupunna-Kumbalangi bridge. The respondent's relatives came to the parental house of the petitioner and abused the petitioner and his family members. They even tried to manhandle the petitioner and his aged father. As per the suggestion of the SI of Police, Aroor Police Station, the parties shifted their residence. There also, she continued her cruel conduct. His father has undergone surgery for tumor. She quarreled with him for visiting his father. On 30.03.2013, he took their minor son with him to visit the father of the petitioner. At that time, the respondent resisted him and attacked him with a knife and the petitioner Mat. Appeal No.985/2018 : 6 : was injured. Thereafter, the respondent ran to the top of the police quarters shouting that she is going to jump from the top. Thereafter, the parties undergone counselling thrice. Thereafter, there is no communication and cohabitation between the parties. The marriage is irretrievably broken. On the aforesaid pleadings, he prays for a decree of divorce. 3. The respondent filed an objection with a counter claim contending as follows: She denied the averments that she behaved in an indifferent manner towards the petitioner and his family members. The respondent was working in Dawn Public School, Palluruthy at the time of marriage. She used to leave her matrimonial home at 6.30 a.m and return at 3 p.m. She used to do all household chores and cared to meet the needs of the petitioner and his parents. She never told the petitioner to reside separately. She nursed the mother of the petitioner, when she was suffering from Cancer. The allegation that the Mat. Appeal No.985/2018 : 7 : respondent ill-treated his mother and abused her is false and hence denied. Eventhough the child was only 2 years, she left the child with her parents and nursed his mother in the hospital for three days. After discharge from hospital, she lived with the petitioner and his family members at the matrimonial home. After two weeks, the petitioner's brother's wife unnecessarily quarreled with her. The petitioner intervened and slapped the respondent on her cheeks. She had serious ear problem. She went to her parental home with the child to take rest. On the death of his mother, the respondent along with the child and her parents went to the house of petitioner and remained there till the funeral. After attending family counseling at Poothotta, while they were returning home in bike, the petitioner suddenly stopped the bike and told her to get down from the bike and go in bus. The respondent had no money with her. She cried since it was getting dark. The petitioner manhandled her in public. The Mat. Appeal No.985/2018 : 8 : petitioner along with the child went to the hospital to saw his father and spent full day there. The respondent had not resisted the same, became violent or attacked the petitioner with a knife as alleged. During October, 2013, the petitioner left the quarters without informing the respondent. He is living at his whims and fancies. The respondent always had love and affection towards him. The marriage is not broken. It can be saved, if the petitioner is given proper counselling and de-addiction treatment. She is ready and willing to resume cohabitation with the petitioner. 4. On the aforesaid rival pleadings, both parties adduced evidence, which consists of the oral testimony of PWs 1 to 3 and documentary evidence of Exts.A1 to A8 from the part of the petitioner and the oral testimony of RW1 and Exts.B1 to B5 from the part of the respondent. 5. After considering the aforesaid evidence on record, the Family Court allowed the Original Petition on a finding that Mat. Appeal No.985/2018 : 9 : the petitioner has succeeded in proving the act of cruelty to him from the part of the respondent and granted a decree dissolving the marriage between the petitioner and the respondent. The legality and correctness of the findings, whereby the Family Court dissolved the marriage, are assailed in this appeal. 6. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 7. In view of the arguments at the Bar, the points to be considered in this appeal are as follows: 1. Whether the petitioner has succeeded in proving that he was treated with cruelty by the respondent as pleaded in the Original Petition. 2. Whether the petitioner has succeeded in proving reasonable excuse for his withdrawal from the society of the respondent. 3. Whether the court below is justified in rejecting the claim for restitution of conjugal rights raised by the respondent. 8. Going by the averments in the Original Petition, we find that the petitioner has specifically pleaded various events, which would give rise to an inference that from the very Mat. Appeal No.985/2018 : 10 : beginning of the marital life, their relationship was in discordance and got it aggravated day by day. According to the petitioner, the respondent threatened him several times stating that she will commit suicide with the child and she attempted to do. Once she made an attempt to commit suicide by jumping from Kumbalangi-Ezhupunna Bridge. In another occasion, while she was travelling with him as a pillion rider in his bike, she himself jumped from the bike and created scene falsely accusing him in public that he has pushed out her from the bike. The said false accusation angered the people gathered there and they moved to attack him. In another occasion, she tried to jump from the top of the residential building with the child. We are of the opinion that persistent threat of spouse to commit suicide is a wilful act committed with an intention to cause sufferings to the other spouse and it would make the cohabitation intolerable. Similarly, it is pleaded that the respondent has frequently Mat. Appeal No.985/2018 : 11 : raised an unfounded allegation that the petitioner has illicit relationship with his brother's wife. If such an allegation was made by the respondent and it is found untrue, certainly that conduct of the respondent/spouse would amount an act of cruelty to the petitioner. Further, it is pleaded that though both spouses were underwent counselling, that did not yield any result and got aggravated day by day. According to the petitioner, when his mother was suffering from cancer and was undergoing treatment, the respondent had taken a hostile attitude towards her and openly expressed her unwillingness to take care of her and nurse her. The respondent had neglected his mother and siblings and wanted to push out them from the parental home. The respondent was not willing to shift their residence to a rented house. Thus, on an analysis of the pleadings, we find that the pleadings are sufficient to constitute act of cruelty to the petitioner, if proved with standard of preponderance of probability. So, the Mat. Appeal No.985/2018 : 12 : next question to be considered is, whether the petitioner has succeeded in proving the aforesaid pleadings, with the standard of preponderance of probability. 9. According to the respondent, in 2013, the petitioner left the quarters without informing the respondent and thereafter, she has lived at peace. The respondent/wife has love and affection towards the petitioner. According to her, her marital relationship has not been broken irretrievably and the petitioner has left the company of the respondent without sufficient reasons and thereby, she is entitled to get a decree for restitution of conjugal rights. 10. In order to prove the aforesaid allegations of cruelty alleged in the original petition, the petitioner has adduced oral evidence of PWs 1 to 3 and the documentary evidence of Exts.A1 to A8. PW1 is the petitioner himself. We have gone through the oral testimony of PW1. He has sworn in the chief affidavit in terms with the averments in the Original Petition. Mat. Appeal No.985/2018 : 13 : He has narrated the incidents as alleged in the Original Petition. On an analysis of the oral testimony in the cross examination, we find that he stood by the pleadings in respect of certain specific incidents, which would amount to cruelty, if the said events are proved. According to him, from the very beginning, they were not in harmonious relationship and she had maintained a hostile attitude towards him and other family members from the very beginning of their marital life. In the chief affidavit, he has specifically stated that both the spouses were subjected to psychological counselling and when they were returning after counselling, in his bike, she tried to commit suicide by jumping from the bike and thereafter, she openly made an allegation to the public gathered there that he pushed her from the bike so as to kill her. The people gathered there got angered and moved towards him violently, believing the words of the respondent. Another incident narrated by him is that one day she made an Mat. Appeal No.985/2018 : 14 : attempt to commit suicide by jumping from the terrace of the building. Further, he made an allegation that when his mother was suffering from cancer, she neglected her and she openly expressed her hesitation to take care and protection of his mother. When he took a rented house to start a separate residence, the respondent was reluctant to shift her stay from her parental home and she wanted his family members to shift their residence to that rented house. The respondent falsely propagated a story that he has illicit relationship with his brother's wife. No attempt was made by the respondent to establish the genuineness or bona fides of the said allegation. It remains as an untrue allegation made deliberately to malign the reputation of the petitioner. The untrue allegations alleging illicit relationship with other family members would amount to cruelty, falling under Section 13(1)(ia) of the Act. In the cross examination, the respondent has tried to contradict the aforesaid specific incidents spoken to by him in the chief Mat. Appeal No.985/2018 : 15 : affidavit. But, they miserably failed to contradict the oral evidence of the petitioner. Though he was cross examined at length, he firmly stood by the incidents spoken to by him in chief examination and the oral testimony stands in conformity with the pleadings. In short, the evidence of the petitioner as PW1 is trustworthy and credible. 11. The evidence of PW1 is further corroborated by the evidence of PWs 1 and 2. PW2 is a Clinical Psychologist with whom both the petitioner and the respondent were subjected to counselling. According to him, he properly advised both the spouses and directed them not to indulge in further disputes between them. But, he has specifically spoken to that though he advised them, they were not willing to obey his advise and in each time of visit, they were found more offended. They raised new issues on everyday of counselling. Though he was cross examined in detail, nothing has been brought out to discredit his evidence that on each occasions, they were found more offended and more hostile to each Mat. Appeal No.985/2018 : 16 : other. The evidence of PW2 gives rise to an inference that they were unable to live together. 12. PW3 was examined to corroborate the suicidal attempt of the respondent from Kumbalangy-Ezhupunna bridge. We have meticulously gone through the cross examination and we find that he has given evidence as an independent witness only and he is not a tutored witness. He has spoken to specific incidents as spoken to by PW1. According to him, the respondent was found missing from the house and thereafter, she went to the aforesaid bridge with an intention to commit suicide and the people gathered there, interfered and rescued her from that attempt. Though he was cross examined at length, nothing has been brought out to discredit his evidence as an independent witness. Thus, repeated threats to commit suicide from the part of the respondent are proved by the testimony of PW1, which stands corroborated by the evidence of PW3. In Pankaj Mahajan v. Mat. Appeal No.985/2018 : 17 : Dimple @ Kajal[1] this Court held that the repeated threat of the wife that she would commit suicide would amount to cruelty. Thus, on an analysis of the sequence of events from the very beginning, we find that the marital relationship between the petitioner and the respondent was very much strained and they were found unable to live together. The chain of circumstances from the very beginning of their marriage give rise to an inference that though they have lived together for about five years only, they have not resided together peacefully or comfortably. The issues arose one by one, on every day throughout the said short period of cohabitation. 13. In the matter of cruelty as a ground to get divorce, the legal position stands settled by the various decisions of the Supreme Court. Cruelty can be said to be an act committed with an intention to cause sufferings to the opposite party. If the conduct of the one of the spouses has become intolerable to the other spouse to suffer any longer 1 2011(4) KLT SN 91 Mat. Appeal No.985/2018 : 18 : and to live together, it can be said that the conduct of the former would amount to cruelty. [2005 (1) KLT 26 (SC)] 14. In the instant case, the above view is seen manifested in the undisputed fact that the petitioner left the company of the respondent from the police quarters, which was allotted to him, in the year 2013, and thereafter, the respondent has been residing in that quarters without the company of the petitioner, though she has no right to reside in that quarters, without the presence of the petitioner. It is true that she raised a counter claim for restitution of conjugal right. As rightly observed by the court below, the said claim was raised as a counter claim in the Original Petition filed by the petitioner, seeking dissolution of marriage and there was no attempt from her part to resume cohabitation till the filing of the Original Petition, though she was residing alone in the police quarters, without the presence of the petitioner. We are of the view that unless the behaviour from the part of the Mat. Appeal No.985/2018 : 19 : respondent was so intolerable, he would not have left the police quarters, which was allotted to him. The said conduct on the part of the petitioner itself is more than sufficient to arrive at an irresistible conclusion that the conduct from the part of the respondent as wife was intolerable to the petitioner and it caused persisting mental agony and sufferings to the petitioner. The respondent has been comfortably residing in the police quarter allotted to the petitioner without his company, for the last five years. Both spouses are living separately for the last more than 5 years and they find convenience and comfort, while living separately, as they could not live together. 15. The respondent was examined as RW1 and she denied the entire allegations of cruelty alleged against her. But, in cross examination, she could not withstand with her versions in the chief examination. The solitary evidence of the respondent could not be relied on, as the same sans credence. She miserably failed to establish that the petitioner has Mat. Appeal No.985/2018 : 20 : withdrawn from the society with her without reasonable excuse. On the other hand, the petitioner has succeeded in proving that he has withdrawn from the society of the respondent, when he realised the fact that it is impossible to suffer the act of cruelty to him from the part of the respondent. He has established reasonable excuse for his withdrawal from the society of the respondent by proving the incidents specifically alleged in the Original Petition. 16. In the above analysis, we find that the petitioner has succeeded in proving the act of cruelty from the part of the respondent to him, so as to get a decree for dissolution of marriage. So also, he proved the reasonable excuse, for the withdrawal from the society of the respondent. We do not find any kind of illegality or perversity in the appreciation of evidence of PWs 1 to 3 and RW1. The Family Court is justified in granting a decree dissolving the marriage between the petitioner and the respondent and rejecting the claim for restitution of conjugal right raised by the respondent. This Mat. Appeal No.985/2018 : 21 : appeal is devoid of merits. Accordingly, this Mat. Appeal is dismissed. sd/K. HARILAL, JUDGE. sd/- ANNIE JOHN, JUDGE. _Rv_